BNUMBER: B-261953.2; B-261953.6
DATE: November 22, 1995
TITLE: Rockwell International Corporation
**********************************************************************
REDACTED DECISION
A protected decision was issued on the date below and was subject to a
GAO Protective Order. This version has been redacted or approved by
the parties involved for public release.
Matter of:Rockwell International Corporation
File: B-261953.2; B-261953.6
Date: November 22, 1995
Alan R. Yuspeh, Esq., David R. Francis, Esq., Jerone C. Cecelic, Esq.,
Natalie S. Manzo, Esq., and Michael W. Ambrose, Esq., Howrey & Simon,
for the protester.
Gerard F. Doyle, Esq., Ron R. Hutchinson, Esq., Scott A. Ford, Esq.,
Alexander T. Bakos, Esq., and Scott W. Woehr, Esq., Doyle & Bachman;
and Steven A. Kaufman, Esq., Clayton S. Marsh, Esq., and James M.
Lichtman, Esq., Ropes & Gray, for Beech Aircraft Corporation, the
interested party.
Gregory H. Petkoff, Esq., Duncan Butts, Esq., Jeffrey Watson, Esq.,
Janice Beckett, Esq., Mark Otto, Esq., and Robert McGrath, Esq., for
the agency.
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protester's contention that agency improperly evaluated proposals
is denied where the record shows that the agency evaluated in
accordance with the criteria announced in the solicitation, and the
record reasonably supports the evaluators' conclusions.
2. Contracting agency reasonably evaluated protester's performance
risk as "moderate" on several evaluation factors based upon
unfavorable information in "contractor performance assessment reports"
and in responses to questionnaires reflecting the protester's recent
poor performance on other contracts.
3. Agency conducted meaningful discussions where the record shows
that the agency held written and oral discussions based on items
consistent with the weaknesses and deficiencies identified in the
protester's proposal, and the protester was afforded several
opportunities to address the specific areas of its proposal considered
weak or deficient and requiring further explanation.
4. Award to offeror submitting a higher-rated, slightly higher-cost,
low risk proposal is unobjectionable where the evaluation scheme
announced in the solicitation gave more weight to the technical
factors than to cost, and the agency reasonably found that the
awardee's technical superiority and low risk were worth the higher
cost.
DECISION
Rockwell International Corporation protests the proposed award of a
contract to Beech Aircraft Corporation under request for proposals
(RFP) No. F33657-94-R-0006, issued by the Department of the Air Force
for a joint primary aircraft training system (JPATS). Rockwell
challenges the proposed award on several grounds including that the
agency's evaluation of proposals was flawed and that the agency failed
to conduct meaningful discussions with Rockwell.
We deny the protests.
BACKGROUND
The objective of the JPATS procurement is to replace the Air Force's
T-37B and the Navy's T-34C aircraft and associated ground based
training systems (GBTS). The primary mission of the JPATS aircraft
and GBTS is to train entry-level Air Force and Navy student pilots in
primary flying and to prepare them to transition into advanced
training tracks leading to qualification as a military pilot. The
JPATS aircraft and GBTS will also provide entry-level officers with a
basic understanding of airmanship prior to their designation as Naval
Flight Officers or Air Force Navigators, as well as provide support
and training for pilot instructors.
The RFP characterized the acquisition as a "fly-before-buy"
procurement. That is, the RFP stated that as part of the evaluation
process, the government would fly each offeror's proposed aircraft to
assess its performance and flying qualities. Thus, in addition to
written proposals, offerors were required to provide an evaluation
aircraft with flying qualities which duplicated those of the proposed
production aircraft.
The RFP stated that the flight evaluation would assess the capability
of each aircraft to train an entry-level student pilot with no prior
flying experience to the proficiency level required by the primary
pilot training syllabus. Air Force and Navy test pilots and customer
pilots would evaluate each aircraft. In addition, the Air Force's
Operational Test and Evaluation Center (AFOTEC) would perform an early
operational assessment of each aircraft during the flight evaluation.
Offerors were also required to provide a mock-up of the proposed
cockpit, which was to be evaluated for various characteristics (e.g.,
anthropometric range capability, lighting checks, and other
engineering components).
The RFP, issued on May 18, 1994, contemplated the award of two
contracts to one offeror--a fixed-price incentive contract with award
fee and economic price adjustments for the manufacturing development
of a primary training aircraft, with options for varying quantities of
production aircraft;[1] and a fixed-price contract for a base period
with up to nine 1-year options for logistics support.
Section M of the RFP stated that in evaluating proposals, the agency
would consider three types of criteria: (1) areas (related to
important program characteristics); (2) assessment criteria (related
to an offeror's proposal and ability to perform); and (3) cost/price
and schedule. The RFP listed the following evaluation areas in
descending order of importance (factors within each area are shown in
parentheses): operational utility/technical (operational capability;
crew accommodations; structural integrity;
certification/qualification; aircraft missionization; and system
safety); manufacturing and quality assurance (manufacturing;
production control; and quality assurance); cost/price; logistics
support (acquisition logistics; contractor logistics support (partial
CLS); and total CLS for the Air Force and Navy);[2] management
(aircraft management; and GBTS support and management); and schedule.
The RFP stated that the manufacturing and quality assurance area was
slightly more important than the cost/price area.[3]
The RFP further stated that, except for the cost/price and schedule
areas, the agency would apply three "assessment criteria" of equal
importance (soundness of approach, understanding the requirements, and
compliance with requirements) to the evaluation areas. The RFP also
identified "general considerations" (including, but not limited to,
proposed contractual terms and conditions and the results of the early
operational assessment of each offeror's evaluation aircraft). The
agency would also assess proposal and performance risk. The RFP
stated that the integrated assessment of the results of the evaluation
would favor proposals that offered the best value to the government
considering development risk and total system life-cycle cost. The
contracts were to be awarded to the offeror whose proposal was
considered to be most advantageous to the government.
Seven offerors responded to the RFP by the time set on July 18 for
receipt of initial proposals. Air Force and Navy pilots conducted
flight evaluations and a source selection evaluation board (SSEB)
evaluated written proposals. Based on the results of those
evaluations, the agency eliminated one offeror's proposal from further
consideration, and initiated discussions with the remaining six
offerors. Following initial discussions, the agency issued amendments
to the RFP; requested and evaluated revised proposals; held oral
discussions; and requested best and final offers (BAFO).
The SSEB evaluated BAFOs by assigning color/adjectival and risk
ratings[4] to each factor announced in the RFP. Beech's proposal was
rated "green" under all evaluation factors, with the exception of
"crew accommodations" and "production control," where its proposal was
rated "yellow" and "blue," respectively,[5] with low proposal and
performance risk.
Rockwell's proposal was rated "green" with low risk under all
evaluation factors, with the exception of "operational capability"
where Rockwell's proposal received a rating of "yellow" with "high"
proposal risk and "moderate" performance risk; and
"certification/qualification," "aircraft missionization"
"manufacturing," and "GBTS support" where its proposal was downgraded
under either proposal or performance risk to "moderate." The agency
also developed a most probable life-cycle cost (MPLCC) of $14.597
billion for Beech, and [DELETED] billion for Rockwell.[6]
A source selection advisory council (SSAC) reviewed the results of the
SSEB's final evaluation and presented its findings to the SSA.[7]
Based on the SSAC's report, the SSA selected Beech for award. These
protests followed.[8]
PROTESTER'S CONTENTIONS
Rockwell challenges the proposed award on several grounds. Rockwell
argues that the agency unreasonably evaluated its proposed corrective
actions to deficiencies the Air Force identified in its evaluation
aircraft, and improperly introduced an unannounced evaluation
criterion into the process. The protester further maintains that the
agency did not treat Rockwell's and Beech's proposals equally in the
evaluation and improperly evaluated Rockwell's proposal and
performance risk. The protester also contends that the Air Force's
discussions with Rockwell were not meaningful, and that the agency's
approach to discussions gave Beech an unfair advantage. Finally, the
protester challenges the agency's cost/technical tradeoff decision,
arguing that had the agency conducted a proper evaluation, the SSA
would have selected Rockwell for award.
EVALUATION OF PROPOSALS
Evaluation of Rockwell's Proposed Corrective Actions
A team of Air Force and Navy instructor and test pilots evaluated
Rockwell's aircraft as part of the flight evaluation under the
"operational capability" factor. Section M of the RFP explained the
purpose of the evaluation under this factor as follows:
"Operational capability. Evaluates the performance, flying
qualities, and training mission accomplishment of the proposed
production aircraft. The evaluation will integrate the results
of the [f]light [e]valuation with the results of the evaluation
of the written proposal for the production aircraft. The
operational capability assessment will be a quantitative and
qualitative evaluation conducted by [g]overnment personnel to
assess the offeror's aircraft's suitability to perform a
65-sortie, 89-flying hour primary training syllabus given an
entry level student pilot with no previous flying experience."
The flight evaluation team flew 13 "sorties" of Rockwell's aircraft
totaling almost 24 flight hours. The team identified several
weaknesses and deficiencies in Rockwell's aircraft, resulting in a
rating of "yellow" (marginal) with a "moderate" proposal risk under
this factor, and issued to Rockwell four clarification requests (CR)
and five deficiency reports (DR). Rockwell responded to each of the
CRs and DRs, and the agency evaluated those responses. With the
exception of the three DRs at issue here, the evaluators concluded
that Rockwell had resolved their concerns with respect to the
remaining six items.
The three DRs at issue concerned deficiencies with flying qualities of
Rockwell's aircraft. [DELETED]
In its responses to those DRs, Rockwell proposed either aerodynamic
changes to the external configuration of its aircraft or modifications
to the aircraft's flight control system. For example, in response to
DR [DELETED]
On January 24, 1995, the Air Force issued amendment No. 0002 to the
RFP. As relevant to this aspect of the protest, the contracting
officer's cover letter to the amendment stated in part:
"Amendment 0002 provides a number of changes to the solicitation.
Offerors are reminded, however, that additional aircraft [f]light
[e]valuations will not be conducted. Proposed changes by
[o]fferors that may affect the flying qualities of their proposed
production aircraft (e.g., responses to [DRs], responses to
solicitation amendments, [BAFOs] etc.) will not change the
results of the [g]overnment's [f]light [e]valuation. However,
any proposed changes that may affect flying qualities may affect
the [g]overnment's integrated evaluation. The [g]overnment will
assess the potential of proposed changes to either enhance or
degrade aircraft performance or flying qualities. . . ."
Subsequently, the agency issued amendment No. 0003. Although the
protester submitted a revised proposal in response to these
amendments, Rockwell did not revise the aircraft modifications it had
proposed in response to DRs [DELETED]. The evaluators found that the
issues raised in those [DELETED] DRs remained unresolved, and
concluded that each of the proposed solutions constituted extensive
changes that placed at risk, without another flight evaluation, nearly
all of the flying qualities/performance aspects of the evaluation
aircraft. As a result, the initial rating of "yellow" assigned
Rockwell's proposal under the "operational capability" factor remained
unchanged, and Rockwell's proposal risk rating under this factor was
downgraded to "high."
Rockwell argues that the agency either did not consider its solutions,
or failed to give due credit to its proposed corrective actions.
Rockwell also maintains that the Air Force's approach to evaluating
its responses to DRs [DELETED] introduced an unannounced evaluation
criterion into the process. In this connection, Rockwell points to
labels in the SSAC's briefing charts which indicated to the SSA
whether its proposed corrections affected the aircraft's flying
qualities.
In reviewing a protest challenging an agency's technical evaluation,
we examine the record to ensure that the agency's evaluation was
reasonable and consistent with the stated evaluation criteria. See
Abt Assocs., Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD para. 223. Based
on our review of the record here, we find no basis to question the
agency's evaluation of Rockwell's proposed corrective actions.
The record shows that the SSEB reviewed Rockwell's proposed changes
and concluded that the solutions affected the aerodynamic performance
of the aircraft. For instance, with respect to Rockwell's proposed
solution to the [DELETED] DR, the evaluators found that while the
proposed changes appeared to improve the [DELETED], the aircraft would
have to be reflown to verify correction of the deficiency.
[DELETED] In addition, as already noted, the evaluators found that in
order to verify whether the proposed solutions corrected the
deficiencies, the aircraft would have to be reflown. As a result of
the deficiencies that remained unresolved, the initial rating of
"yellow" (marginal) assigned to Rockwell's proposal under the
"operational capability" factor remained unchanged, and the proposal
risk rating was downgraded to "high."
The record does not support Rockwell's position that the Air Force
failed to adequately consider its proposed solutions to the noted
deficiencies. What the record does show is that Rockwell provided
either insufficient data or limited analyses to convince the
evaluators that the noted deficiency was corrected. With the
exception of the corrections in response to DR [DELETED], it appears
that Rockwell's solutions [DELETED]. With respect to DR [DELETED], the
record shows that the SSEB carefully considered Rockwell's proposed
solution, and concluded that the aircraft would have to be reflown to
verify whether the proposed [DELETED] cured the deficiency. The fact
that the ratings the SSEB assigned Rockwell's proposal under the
"operational capability" factor did not improve following discussions
does not mean that the evaluators failed to consider Rockwell's
responses. Rather, the final ratings of "yellow" (marginal) and
"high" proposal risk reflect the evaluators' reasonable conclusions
based on their assessment of Rockwell's responses to the DRs that some
of the deficiencies remained unresolved.
Unequal Evaluation
The protester also argues that the Air Force evaluated Rockwell's and
Beech's corrective actions in response to the DRs in a disparate
manner. For instance, Rockwell asserts that Beech's initial rating
under the "operational capability" factor improved from "yellow" to
"green" following discussions based on Beech's proposed solutions,
while Rockwell's rating did not improve under the same factor even
though the protester provided similar data. Rockwell also argues that
the SSEB rated Beech's proposal "blue" under the "production control
and quality assurance" factor for achieving some of the RFP's
"desired" characteristics, but failed to assign a similar rating to
Rockwell's proposal under the "crew accommodations" factor even though
Rockwell's proposal met or exceeded the RFP's "desired"
characteristics in that area.
In this regard, Beech's initial proposal was downgraded under the
"operational capability" factor because the flight evaluation team was
unable to assess the aircraft's [DELETED]. [DELETED]. The agency
issued DRs to Beech identifying these deficiencies and Beech responded
to the DRs.
In response to the [DELETED] DR, Beech proposed a different [DELETED].
The agency evaluated Beech's responses and concluded that Beech's
solution to [DELETED]. The agency also found that the change to
performance or flying qualities was minimal, with a high probability
that the proposed solution would correct the problem. The record
further shows that the additional data Beech provided concerning
[DELETED] satisfied the evaluators' concerns in this regard. Beech's
proposed solution to the [DELETED] DR was a relatively simple design
change considered to have minimal impact on the performance or flying
qualities of the aircraft, and Beech's supplemental flight test data
submissions were evaluated and found to satisfy the evaluators'
concerns.[9] Accordingly, we think that the improved rating assigned
to Beech's proposal under the "operational capability" factor
reasonably reflects the SSEB's conclusion.
The fact that Rockwell's rating under the "operational capability"
factor did not change following discussions does not show that the
agency treated offerors differently, or that the agency's evaluation
was unreasonable. Rather, the final ratings reflect the fact that
several of Rockwell's responses did not reasonably convince the
evaluators that the proposed fixes would not place at risk other
flying qualities of the aircraft.
Rockwell also challenges the evaluation of its proposal under several
other factors, including "crew accommodations," "structural
integrity," and "aircraft management." We have reviewed the record,
including Rockwell's proposal, the agency's evaluation materials, and
the protester's submissions. Based on our review, we find no basis
for concluding that the evaluation of Rockwell's proposal under those
factors was unreasonable, or that Beech was accorded preferential
treatment in the evaluation as Rockwell contends. Rockwell's mere
disagreement with the agency evaluators does not itself render the
evaluation unreasonable. Allied-Signal Aerospace Co., B-250822;
B-250822.2, Feb. 19, 1993, 93-1 CPD para. 201.[10] To illustrate, we
discuss the evaluation of the protester's proposal under the "crew
accommodations" factor, where Rockwell argues that given the several
features of its cockpit considered as strengths by the evaluators, its
proposal should have received a rating of "blue" (rather than "green")
under this factor.[11]
The final evaluation results show that while the SSEB noted several
strengths in Rockwell's proposal under the "crew accommodations"
factor, none of the strengths distinguished Rockwell's proposal from
the rest under this factor. For instance, the record shows that all
offerors proposed to accommodate the desired pilot population sizes
(of both men and women) and that this feature was listed as a strength
in Rockwell's proposal as well. Other features of Rockwell's cockpit
mock-up also shared several strengths with other offerors' proposals.
While the evaluators considered these features strengths in Rockwell's
proposal, the evaluators considered Rockwell's [DELETED] to be a
weakness. In addition, the evaluation documents show that Rockwell
proposed the minimum required [DELETED]. Based on these results, we
have no basis to conclude that the rating of Rockwell's proposal under
the "crew accommodations" factor was unreasonable.
Unannounced Evaluation Criterion
In the briefing charts to the SSAC and SSA, the SSEB used labels to
indicate whether the offerors' proposed solutions to deficiencies
identified during discussions had either "significant" (S) or "no
significant" (NS) impact on the aircraft's flying qualities. As
already explained, since the evaluators were concerned over the impact
Rockwell's proposed changes could have on the aircraft's flying
qualities, the SSEB's briefing charts summarizing the evaluation of
Rockwell's proposal show the letter "S" under the "operational
capability" factor, reflecting the evaluators' concerns. Rockwell
maintains that by including that label in the briefing charts, the
agency improperly introduced an unannounced criterion into the
evaluation process.
We do not view the labels used by the SSEB in its briefing charts as
separate ratings that constitute an unannounced evaluation criterion.
Rather the "S/NS" labels the Air Force used in the final evaluation
briefing charts simply reflected the evaluators' concerns--made known
to Rockwell throughout discussions--regarding the extent to which the
proposed corrections affected or placed at risk other flying qualities
of Rockwell's aircraft. In view of the RFP's requirement that the
evaluation aircraft possess flying qualities that duplicated those of
the proposed production aircraft, we see nothing objectionable in the
agency's approach of indicating to the SSA the evaluators' conclusions
regarding the degree to which Rockwell's proposed corrections placed
at risk other aspects of the aircraft's flying qualities.
PERFORMANCE AND PROPOSAL RISK EVALUATION
The Air Force rated Rockwell's performance risk as "moderate" under
three factors--"operational capability," "aircraft missionization,"
and "GBTS support and GBTS management"--primarily due to Rockwell's
poor performance under another Air Force contract (the AC-130U Gunship
Replacement Program, referred to in the record as the "Gunship"
contract). The agency also downgraded Rockwell's proposal risk
ratings to "moderate" under the "certification/qualification" and
"manufacturing" factors. Rockwell argues that these ratings were
unwarranted because the Gunship contract is "irrelevant" to the JPATS
procurement. In this connection, Rockwell asserts that the Gunship
contract was a developmental contract,[12] while the JPATS RFP
contemplates a production contract. Rockwell also maintains that some
of the features of the Gunship contract are different from or more
complex than the requirements under the JPATS RFP.
In evaluating Rockwell's performance risk, the Air Force's performance
risk assessment group (PRAG) considered unfavorable information
contained in 34 contractor performance assessment reports (CPAR) and
in responses to questionnaires covering Rockwell's recent performance
on several projects, including the Gunship contract. For example, the
PRAG found that Rockwell's aircraft under the Gunship contract failed
to meet [DELETED]. Recognizing that Rockwell could not meet contract
requirements, the Air Force restructured that program, thereby
essentially relaxing some of the requirements. Rockwell's performance
rating under that contract subsequently improved from "yellow"
(marginal) to "green" (acceptable) in its most recent CPAR. The PRAG
also found that Rockwell's [DELETED] were weak on both the Gunship
contract and on another project, referred to in the record as the B-1B
contract. In addition, the PRAG found that there were numerous
[DELETED] and that Rockwell had failed to respond to Air Force
concerns on the Gunship contract.
In response to the agency's CR item on the Gunship and B-1B contracts,
Rockwell argued, as it does in this protest, that the Gunship contract
was not relevant to the JPATs procurement, and pointed out several
steps it had taken to improve the problems encountered under both
contracts. Rockwell also argued that the Air Force had caused some of
the problems. The PRAG concluded, however, that [DELETED].
Although Rockwell offers various explanations that provide a more
favorable view of Rockwell's performance, there was sufficient
evidence in the record for the Air Force to conclude that the firm had
performance problems relevant to the factors at issue. An agency's
evaluation of past performance may be based on the procuring agency's
reasonable perception of inadequate prior performance, even where the
contractor disputes the agency's interpretation of the facts. See
Pannesma Co. Ltd., B-251688, Apr. 19, 1993, 93-1 CPD para. 333. Based on
our review of the record, we think that the "moderate" risk rating
assigned Rockwell's proposal under these factors is consistent with
the PRAG's conclusions based on the unfavorable information contained
in the CPARs.[13]
Rockwell's contention that the Gunship contract is irrelevant to the
JPATS procurement is without merit. In our view, Rockwell's failure
to [DELETED] for instance, were aspects of Rockwell's performance
relevant to the PRAG's assessment. The fact that specific features of
the Gunship contract may be different from requirements under the
JPATS RFP does not render Rockwell's poor performance under that
contract "irrelevant" to the PRAG's assessment.
DISCUSSIONS
Rockwell argues that the agency's discussions with the firm were
flawed in several respects. For instance, the protester argues that
the Air Force should have informed Rockwell in the request for BAFOs
that the evaluators' concerns regarding the aircraft's [DELETED] had
not been resolved. The protester also maintains that the agency
improperly failed to inform Rockwell that the evaluators considered a
[DELETED] Rockwell imposed on its evaluation aircraft to be a
deficiency. The protester also contends that the agency did not treat
Beech and Rockwell equally during discussions.[14]
The requirement for meaningful discussions with offerors is satisfied
by advising them of deficiencies in their proposals and affording them
the opportunity to satisfy the government's requirements through the
submission of revised proposals. Federal Acquisition Regulation sec.
15.610(c)(2) and (5); TM Sys., Inc., B-228220, Dec. 10, 1987, 87-2 CPD para.
573. Here, based on our review of the record, we conclude that the
agency's discussions with Rockwell were meaningful.
As discussed earlier, the agency issued several CRs and DRs
specifically identifying those areas of Rockwell's evaluation aircraft
found deficient or requiring further explanation. Specifically, DRs
[DELETED] pointed out deficiencies with respect to the aircraft's
[DELETED]. In addition, the oral questions the Air Force prepared for
Rockwell addressed each one of the issues remaining unresolved.[15]
The record shows that the Air Force issued to Rockwell detailed items
for the oral discussions, tailored for the particular deficiencies
noted in the DRs. The record is thus clear that the agency pointed
out to Rockwell during both written and oral discussions those areas
of its proposal found weak or deficient and requiring further
clarification or correction.
Rockwell's allegation that the agency failed to inform it that its
proposed corrective actions were outside an acceptable range of
solutions is simply without merit. As described above, after
evaluating its responses to the DRs, the Air Force issued to Rockwell
questions for oral discussions. The record shows that those questions
clearly placed Rockwell on notice that based on their evaluation of
Rockwell's proposed solutions, the evaluators remained concerned over
the impact those corrective actions could have on the flying qualities
and performance characteristics of the production aircraft. The
record shows that the agency specifically informed Rockwell throughout
the discussions that the evaluators believed that the design changes
Rockwell proposed in response to DRs [DELETED] significantly affected
the flying qualities of its aircraft; that the proposed modifications
placed at risk, without another flight evaluation, nearly all of the
flying qualities evaluated during the initial flight evaluation; and
that the agency would not conduct another flight evaluation. Thus,
Rockwell was made aware of the agency's concerns and was given ample
opportunity to submit other solutions to the deficiencies that would
not impact on the flying qualities of the evaluation aircraft, and
chose not to do so.
Contrary to Rockwell's assertions, there is no support in the record
that the agency considered its proposed corrective actions to be
outside a predetermined range of acceptability. Rather, the record
clearly shows that the agency considered Rockwell's responses to the
CRs and DRs, and specifically informed the protester during written
and oral discussions of its concerns over the impact the corrective
actions had on the aircraft's flying qualities. Further, to the
extent that Rockwell argues that the Air Force should have informed it
in its request for BAFOs of weaknesses or deficiencies remaining in
its proposal, agencies are not required to notify offerors of
deficiencies remaining in their proposals or to conduct successive
rounds of discussions until such deficiencies are removed. See Hughes
Training, Inc., B-256426.4, Jan. 26, 1995, 95-1 CPD para. 154. In our
view, the Air Force's approach to discussions was reasonable.[16]
With respect to the [DELETED] Rockwell's proposal stated that its
aircraft's test [DELETED]. As a result of that [DELETED] the
evaluators were unable to fully assess certain aspects of the
evaluation aircraft such as [DELETED] performance and [DELETED]
characteristics. Rockwell maintains that had the agency raised its
concerns [DELETED] during discussions, it could have provided
additional data to satisfy the agency's concerns.
As already explained, the RFP required offerors to provide an
evaluation aircraft capable of performing maneuvers in accordance with
an established syllabus, and that possessed flying qualities (e.g.,
aerodynamics, controls, and center of gravity, etc.) which duplicated
those of the proposed production aircraft. Clearly, by placing a
[DELETED] the protester either knew or should have known that the
evaluators' ability to fully assess the flying qualities and
performance characteristics of the aircraft would be seriously
limited. Rockwell, aware of that [DELETED] was obligated to submit
sufficient [DELETED] flight data with its proposal to demonstrate
that, without the [DELETED] its production aircraft would meet the
RFP's minimum performance requirements.[17] See Cyber Digital, Inc.,
B-255225, Feb. 18, 1994, 94-1 CPD para. 123. Given the RFP's requirement
and given that Rockwell was well aware of the effect that the
[DELETED] would have on its evaluation aircraft, we think that the
agency was not required to remind the protester during discussions
that its aircraft could not be fully evaluated as a result of the
[DELETED].
Rockwell also contends that the agency conducted unequal discussions
because the Air Force allegedly provided Beech with opportunities to
present more information during oral discussions than Rockwell was
permitted to provide. In this regard, offerors were limited to only
one "viewgraph" for each oral question the Air Force issued.[18]
Rockwell complains that the Air Force asked Beech 28 questions
regarding a particular issue, thereby allowing Beech to prepare 28
viewgraphs in response to that item, and that Rockwell was not asked a
similar number of questions regarding any of its remaining
deficiencies.
Contracting agencies have wide discretion in determining the nature
and scope of negotiations. While discussions must provide offerors
with an equal opportunity to revise their proposals, the content and
extent of discussions are within the discretion of the contracting
officer. See Tritech Field Eng'g, Inc., B-255336.2, April 13, 1994,
94-1 CPD para. 261. Since the number and type of deficiencies, if any,
will vary among proposals, there is no requirement that all offerors
receive the same number or type of discussion questions. Textron
Marine Sys., B-255580.3, Aug. 2, 1994, 94-2 CPD para. 63. Rather, the
agency should individualize the evaluated deficiencies of each offeror
in its conduct of discussions. Pan Am World Servs., Inc.; et al.,
B-231840, et al., Nov. 7, 1988, 88-2 CPD para. 446; Indian Community
Health Servs., Inc., B-217481, May 15, 1985, 85-1 CPD para. 547. Because
the degree of deficiencies in proposals will vary, the amount of
specificity or detail of discussions will also vary among the
offerors. Pope Maintenance Corp., B-206143.3, Sept. 9, 1982, 82-2 CPD para.
218.
The record clearly shows that Beech and Rockwell were each presented
with CRs and DRs and oral discussion items, tailored to the specific
deficiencies identified in their written proposals or in their
respective evaluation aircrafts. The fact that Beech was presented
with a different number of questions on any particular issue than was
Rockwell is simply a reflection of the results of the evaluation of
proposals and the offerors' responses to the CRs and DRs, rather than
any inequality in the treatment of offerors. For example, in response
to one DR, Beech included a detailed table of test points for
[DELETED] "runs" Beech had conducted since the flight evaluation.
During oral discussions, the Air Force asked Beech the same two
questions with respect to [DELETED]. Different runs from the
[DELETED] listed in Beech's response (and, thus, Beech was permitted
to present one viewgraph in response to each question). Accordingly,
the record shows that the number of viewgraphs Beech presented was a
function of Beech's detailed responses to DRs, and not the result of
unequal treatment of offerors. Moreover, Rockwell had ample
opportunity to submit additional information to satisfy the Air
Force's concerns in its responses to the CRs and DRs; in its revised
proposal in response to the RFP's amendments; during oral discussions;
and in its BAFO. All offerors, including Rockwell, were requested to
submit a BAFO after oral discussions, and were permitted to make any
changes to their offers deemed appropriate based on the written and
oral discussions. Thus, Rockwell was afforded the same opportunities
as the other offerors to respond to the agency's concerns. If
Rockwell believed that it did not respond fully to the agency's
concerns during discussions, the firm could have done so in its BAFO.
See Ways, Inc., B-255219, Feb. 17, 1994, 94-1 CPD para. 120. There is no
support in the record for the protester's suggestion that offerors
were not treated equally during discussions.[19]
COST/TECHNICAL TRADEOFF
Rockwell argues that the selection of Beech's proposal was improper
because the SSA placed undue weight on two aspects of Beech's
MPLCC--low production cost and low fuel usage. Rockwell maintains
that the SSA's reliance on those two components of cost essentially
made them unannounced evaluation criteria. According to the
protester, had the agency conducted a proper evaluation, the SSA would
have realized that Rockwell's proposal represented the best value to
the government.
In a negotiated procurement, there is no requirement that award be
made on the basis of lowest cost unless the RFP so specifies. Henry
H. Hackett & Sons, B-237181, Feb. 1, 1990, 90-1 CPD para. 136.
Cost/technical tradeoffs may be made, and the extent to which one may
be sacrificed for the other is governed only by the tests of
rationality and consistency with the established evaluation factors.
Grey Advertising, Inc., 55 Comp. Gen. 1111 (1976), 76-1 CPD para. 325.
Awards to offerors with higher technical scores and higher costs are
proper so long as the result is consistent with the evaluation
criteria, and the procuring agency reasonably determines that the
technical difference is worth the cost premium. Bendix Field Eng'g
Corp., B-241156, Jan. 16, 1991, 91-1 CPD para. 44.
The protester's allegation that the SSA placed undue weight on
unannounced evaluation criteria is without merit. The source
selection decision document shows that the SSA based her decision on
an integrated review of the evaluation results, including the terms
and conditions agreed to during negotiations, and the results of the
early operational assessment of the aircrafts.
The record shows that the SSA specifically considered several
strengths of Beech's proposal under the most important evaluation
factors, and concluded that Beech's proposal provided the best value
to the government overall. For instance, the SSA noted that Beech
proposed the only aircraft with no weaknesses under the "operational
capability" factor, and that Beech's aircraft was the only aircraft
that met the primary flight training requirements without
modifications or additional student pilot training. The SSA also
noted that Beech's aircraft was tolerant to five of six common student
errors and displayed excellent spin performance. The SSA's decision
also specifically cites specific strengths the evaluators noted with
respect to Beech's proposed cockpit. The SSA found that Beech
proposed a superior approach over other offerors with respect to
manufacturing and quality assurance, and logistics support. The SSA
specifically noted that Beech's proposal satisfied all scheduling
requirements, and that Beech's past and current performance on other
contracts earned the proposal performance and proposal risk ratings of
"low" under all evaluation factors. While the SSA noted that Beech's
MPLCC was not the lowest, the SSA specifically found that Beech's
MPLCC was only slightly higher than the lowest evaluated MPLCC in the
competition.
Based on her integrated assessment, the SSA concluded that the
superior characteristics of Beech's proposal and that firm's lower
performance and proposal risks were worth its slightly higher cost.
Contrary to the protester's suggestion, the SSA did not accord undue
weight to Beech's low production cost and low fuel usage. Rather,
these were only two aspects which the SSA considered in her assessment
of Beech's proposal.[20] Based on our review of the record, we find
that the SSA reasonably concluded, consistent with the RFP, that
Beech's proposal presented the best value to the government. See
DynCorp, B-245289.3, July 30, 1992, 93-1 CPD para. 69.
The protest is denied.
Comptroller General
of the United States
1. The RFP was structured so as to permit the agency to acquire
varying quantities of aircraft during several fiscal years depending
on its needs. For instance, contract line item number (CLIN) 3001
stated that for fiscal year 1996, the contractor is to provide from 1
to 6 production aircraft, with a "target" quantity of 3 production
aircraft. Similarly, for fiscal year 1997, CLIN 4001 called for the
contractor to provide from 9 to 15 aircraft, with a target quantity of
12. For each CLIN, offerors were to submit unit prices per aircraft
for the range of quantities under each CLIN.
2. Offerors were required to submit proposals for supporting two
approaches for CLS--(1) a combination of partial CLS for the Air Force
and total CLS for the Navy, and (2) total CLS for the Air Force and
the Navy. The RFP stated that although the Air Force would evaluate
both approaches, only one would be included in the acquisition. The
proposed award to Beech was based on the partial CLS approach.
3. Within the "operational utility/technical" area, the "operational
capability" and "crew accommodations" factors were of equal
importance, with each one of those two factors being more important
than the remaining factors within this area. The factors within each
of the other areas were of equal importance.
4. The color/adjectival ratings are blue (exceptional); green
(acceptable); yellow (marginal) and red (unacceptable). Risk ratings
were high, moderate, or low.
5. Beech's proposal received a proposal risk rating of "moderate"
under the "crew accommodations" factor.
6. In its agency report to our Office, the Air Force states that it
discovered mathematical errors in the MPLCC figures developed for
Beech and Rockwell that were presented in the final briefing to the
source selection authority (SSA). These errors apparently occurred in
transferring figures from spreadsheets to briefing charts, and
omitting some items that should have been included. The agency states
that the correct figures further widen the difference between Beech's
and Rockwell's MPLCC by $59 million.
7. The Secretary of the Air Force was the SSA for this procurement.
8. The Cessna Aircraft Company, another unsuccessful offeror, has also
filed protests (B-261953.3; B-261953.4; and B-261953.5) challenging
the proposed award to Beech. The issues raised in Cessna's protests
will be addressed in a separate decision.
9. In addition to quantitative flight test data concerning [DELETED].
10. Rockwell also suggests that the SSEB was biased in its evaluation
of proposals. Prejudicial motives will not be attributed to
contracting officials on the basis of unsupported allegations,
inferences, and suppositions as advanced by Rockwell. See Avogadro
Energy Sys., B-244106, Sept. 9, 1991, 91-2 CPD para. 229. Nothing in the
record indicates bias or bad faith on the part of the evaluators.
11. Rockwell claims that in light of the number, size, and
sophistication of the offerors, the paucity of "blue" ratings shows
that the agency's evaluation was unreasonable. Except for its general
contention, however, the protester has not presented any evidence
showing that the agency's approach to evaluating proposals was
unreasonable. Moreover, to the extent that Rockwell is challenging
the specific lower ratings assigned to other unsuccessful offerors'
proposals, Rockwell is not an interested party to raise this
allegation. See 4 C.F.R. sec. 21.0(a) (1995). The proper parties to
raise this allegation are the other unsuccessful offerors, each of
whom has a more direct interest in the outcome of such a challenge.
See, e.g., Integrated Sys. Group, Inc., B-246446, Feb. 21, 1992, 92-1
CPD para. 213.
12. The Gunship contract was a fixed-price contract to design,
develop, test, and produce 13 side-firing AC-130U Gunship aircraft
utilizing C-130H airframes.
13. Rockwell asserts that the CPARs were biased due to pending
litigation. In this connection, Rockwell states that at the time the
CPARs were prepared, the firm had several claims pending against the
Air Force under the Gunship contract. Rockwell contends that the
unfavorable information in the CPARs was a deliberate attempt by the
agency to buttress its defense to the pending claims. This argument
is speculative at best. In any case, Rockwell does not deny that
there were performance problems under the Gunship contract. Rather,
Rockwell insists that any performance problems on that project were
attributable to the type of contract involved and to government
action. [DELETED].
14. In its protest, Rockwell also argued that the Air Force had failed
to raise during discussions that the AFOTEC evaluation had detected
difficulties regarding [DELETED]. The agency responded to this
allegation in its report, and the protester does not take issue with
the agency's position in this regard. Accordingly, we consider the
issue abandoned. See Heimann Sys. Co., B-238882, June 1, 1990, 90-1
CPD para. 520.
15. For instance, the agency's discussion item addressing the
[DELETED].
16. Rockwell argues that the RFP stated that the procurement would be
conducted in accordance with Air Force Federal Acquisition Regulation
Supplement Appendix AA, "Formal Source Selection for Major
Acquisitions." According to Rockwell, that regulation required that
the Air Force inform it in the request for BAFOs of any deficiencies
remaining in its proposal. As already explained, we think that the
agency's approach to discussions was reasonable. In any case, such
regulations are internal instructions to aid agency personnel and do
not provide outside parties with any legal rights. See Sabreliner
Corp., B-242023; B-242023.2, Mar. 25, 1991, 91-1 CPD para. 326, n. 16.
17. In any event, the [DELETED] DR, placed Rockwell on notice that the
evaluators were concerned with difficulties related to the aircraft's
[DELETED] characteristics. Rockwell had ample opportunity to provide
additional [DELETED] data in response to this DR, and failed to do so.
18. To the extent that Rockwell challenges the agency's approach of
limiting offerors to one viewgraph per discussion item, this
allegation is untimely. See 4 C.F.R. sec. 21.2(a)(2). If Rockwell
objected to the agency's one viewgraph per item rule, it was required
to raise its objections within 10 days of learning of the agency's
approach, or by April 10. Entwistle Co., B-248464.2, Nov. 2, 1992,
92-2 CPD para. 296. Since Rockwell did not file its protests until July,
this allegation is untimely.
19. The protester relies on our decision in National Medical Staffing,
Inc., B-259402; B-259402.2, Mar. 24, 1995, 95-1 CPD para. 163, to argue
that the Air Force conducted unequal discussions. In that case,
unlike the facts here, we concluded that the agency's discussions were
flawed and sustained the protest because the agency failed to advise
the protester during discussions of weaknesses in its proposal, while
it advised two other offerors of the same weaknesses in their
proposals. As already explained, that was not the case here.
20. Even a cursory review of the source selection document shows that
Rockwell's contention that the SSA placed undue weight on Beech's low
production cost and low fuel usage is meritless. After a detailed
discussion of the strengths of Beech's proposal under the most
important evaluation factors, the SSA noted that "Beech exhibited the
lowest most probable production cost and low fuel usage." Given the
SSA's detailed analysis of the strengths and benefits of Beech's
proposal under several factors, it cannot be said that the SSA placed
undue weight on those two components of the MPLCC in her selection
decision.